So there’s no surprise that as new forms of communication spring up, attorneys worry if their online activities run afoul of restrictions on soliciting business. Here are a few things to keep in mind:

“Solicitation” of business means approaching a potential client proactively and pitching them to hire you. It doesn’t apply to situations where the potential client opens the dialogue – regardless of whether what brought them in was a personal referral, attorney billboard, or an open inquiry for help (“I’m in trouble and need an attorney!”) issued via social media.

Permissible restrictions 1 on solicitation are limited to three general areas:

Where the attorney is making the pitch directly to the client in-person, on the telephone or via “real time electronic communication.”

In other situations where the potential client is not in the proper frame of mind to choose counsel (e.g., in the hospital, or mentally or emotionally impaired).

During limited time periods (typically 2 weeks to a month) following an accident or mass tort event.

As the Supreme Court explained in the Ohralik and Primus decisions (the former upholding a restriction on in-person solicitation; the latter overruling a restriction on written communication), such restrictions are intended to mitigate the pressure of an in-person sales pitch from a trained advocate. To the extent the form and nature of the communication allows for reflection and time to make an informed choice, there’s no real basis for restricting the communication. 2

Or, as the Supreme Court noted in Edenfield v. Fane,3 in striking down in-person solicitation restrictions on CPAs:

“[T]he constitutionality of a ban on personal solicitation will depend upon the identity of the parties and the precise circumstances of the solicitation. Later cases have made this clear, explaining that Ohralik’s holding was narrow and depended upon certain “unique features of in-person solicitation by lawyers” that were present in the circumstances of that case.

Ohralik was a challenge to the application of Ohio’s ban on attorney solicitation and held only that a State Bar “constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.” While Ohralik discusses the generic hazards of personal solicitation, the opinion made clear that a preventative rule was justified only in situations ‘inherently conducive to overreaching and other forms of misconduct.’” 4

So when thinking about social media, it’s important to start from the premise that any restrictions should only apply to forms of communication that are “inherently conducive to overreaching or other forms of misconduct.”

Boil that down to a real-world rule for social media use? The ABA Model Rules have defined it as “real-time electronic contact.” 5 What this means, in order to fit within the constitutional limitations, is a form of electronic communication that essentially replicates the experience of an in-person or telephonic communication.

Most forms of social media communication are more akin to a letter than an in-person communication. There’s an opportunity to reflect or research before responding. And, critically, there’s the option of not responding at all.

State bars that have reviewed email and short message services have concluded that such means of communication are not “real time electronic contact.” As with letters, brochures, or other forms of written communication, the convention and format of email and messaging services is such that the recipient can easily choose to ignore the message or take whatever time is necessary prior to responding.” 6

Obviously, the state bar rules around advertising can’t possibly keep up with all of the new forms of electronic communication that are developing. But keeping this analogy to an in-person conversation in mind should provide all the guidance necessary to determine whether a solicitation via a particular form of electronic communication runs afoul of the rules.

I would also offer that this is another place where common sense should prevail. We attorneys are often so rule-bound we lose the forest for the trees: ask yourself, as objectively as possible, whether you would find the message problematic if you were the recipient. Would you feel pressured to respond or agree? Would you be in a frame of mind where choosing counsel might be difficult?

Or would the message simply be a point of information, something you could review at your leisure, follow up on or discard, but feel more informed about your legal options as a result, regardless of whether you responded?

If you have any question whatsoever that the communication fits the latter category, don’t do it.

Because it’s also critically important to remember this: If you are sending out unsolicited pitches for business using social media, you are almost certainly doing it wrong.

Notes:

Remember, the commercial speech doctrine applies: outside of these areas, attempts at bar regulation of solicitation violate the First Amendment rights of attorneys. ↩

Time-based limitations applicable to personal injury and wrongful death matters are based on a different – and more constitutionally suspect – justification: preserving accident victims’ privacy from advertising methods that reflect poorly on the legal profession. SeeFlorida Bar v. Went for It.↩